43 F. 858 -

43 F1d 858

class="ad-unit">

Advertisement

Case Text

858

whioh

FEDERAL REPORTER,

voL 43.

to June, a who had colorof title ,this tax-deed. It is true that these. or, ,their ancestors had, as is insisted in their behalf, no right of upon these l&1J,da: llntil Mrs. life-estate; but it does not followthftlt bflcause they had no right of entry, they, or those under whom theprcsent plaintiffs claim, had no right to protect their possible ,estate in, ,;,They could have el,ljoined Mrs. Lewis,or, anyone claimfrom committing waste; and if Mrs. J,ewis neglected or ing refused topaY'ithe taxes, /lnd suffered the property to be sold for taxes, the title in fee,they might have filed a bill in eqthereby uity, and had the property placed .i'n the hands of a receiver, with power to redeemfrptn such,sale. Story, Eq. JUl'. § 913 et. seq.j High, Rec. §§ 11, 672. With these rights to inter/ere for the protection of the propertyJrom the consequences of neglect of the life-tenant, it seems dent to.,roe thatwben Mrs. Lewis,having become clothed with color of titleitl feeJ>y this tax-deedof 184:9, assumed to m.ake a conveyaucein fee to a person who had no notice that her real interest as against the a life-estate, those heirs were bound' to asheirs 'of her hUSband ,was sert their :possible interest in, apt time; that whoever were the heirs at law 'io.1856 of Romeo LewiS, when Mrs. Lewis, by her agent, sold the lands:i:n question in, this suit in fee to Dehority, and put him in possession, thereby d,ealing with the property as jf she were the owner in foo"itwils the duty of those heirs to have interfered, Rnd appealed to the 'proper court for redress. At thet4ne of Mr, Lewis' death, when his will took effect, Mrs. Lewis had no heirs of her body, and his then heirb atJaw,under whom these plaintiffs claim, were the reversioners of the fee in .expeotancy, and in fact ever since the death of Mr. Lewis his heii's at law hll"e-at times been the reversioners in expectancy; and I think it needs no to show that the neglect of these heirs to assert theirpossihie intE>rest in the land in time to rescue it from the operation of the limitation laws of Illinois is binding and effective upon the pres. ent plaintiffs.' . Suppose M:ts.Lewis, after,the death of her husband, in view of the fact that these lands were wholly unproductive, and so being only a burden Upon' her by reason of the annually accruing taxes, had abandoned them a.nd paid no taxes, and this defendant had bought them in at a taxhad entered upon the actsale in 184Q,and, after obtaining a ual possession;, and remained since that time in full possession up to the time ,of;tbis sliit, and had regularly paid all taxes, can there be any doubtwthat,under the statutes of Illinois, he would have obtained a valid .against these plaintiffs? But yet it seems to me .that the case supposeddoe\!lnat'differ in principle from the one made by the facts,as the person ,to whom Mrs. Lewis conveyed her tax-title without notice if he had been the bl;lyer at the stands in precisely the same tax-sale. l . " ; . On the trial, proofs were offered on the part of the plaintiffs tending toslilOiW that:ethere was no record in Woodford county of any judgment which these lands sold at the tax-sale.of 1846.' ,I

IN RE SUPERVisoRS OF ELECTION.

859

do not Consider that this -proof defeats or affects the defense, as th'e faxdeed was sufficient color of title to set the statute running. Heacock, 34 Ill. 476j Foster v. Letz, 86 Ill. 412j Lake Shore M. S. B. 0>. v. Pittsburgh F. W. By. 00.,71 Ill. 38. For these reasons, I am of opinion that the defense the statute of limitations is complete, and do not deem it necessary to pass uppn the defenf:le made upon other grounds. An order will be entered. finding defendants not guilty.

The refusal of the managers of one political party to co-operate in a petittonfor the of supervisors of election is no reason for denying the petition, where It appears that the petitioning party used due diligence to secure such c0operation. In the absence of any showing, either in the petition or by evidence, that the persons named in the petition possess the statutory qualificationa of supervisors, the petition should be denied.

2.

SAME.

A.t LaW.

MAXEY, J. .A. petition, dated October 20, 1890, signed by 23 citizens of E1 Paso county, was addressed to the chief supervisor of elections. of this judicial district, pra,ying for the appointment of supervisors to guard and scrutinize the election to be held in that county on the 4th day of November. The petition is in the following form: "WI'. the undersigned citizens of the connty of EI Paso and state of Texas. and voters in said county, and men of good standing. hereby make it known to the honorable United States circuit jUdKe. for the fifth circuit. and western district of Texas, that we desire to have the approaching election for a representative in congress from the eleventh (11th) congressional district of Texas, to be held on the fourth day of November. A. D. super, ,vised. so far as the county of EI Paso is concerned. guarded and scrutinized accordmg to the provisions of section 2011, United States Hevised Statutes. and other provisions of the law. We have the honor to attach hereto a list of supervisor!! prayed for. marked ·Exhibit A.' " The paper marked "Exhibit A" begins with this statement: ..Accompanying our pl'tition this day, the 20th of October. A. D. 1890, presented, we have to report to you that S. H. Buchanan and - - ,,respectively. chairmen of the Republican and Democratic committees of El Paso county. Texa.s, have agreed upon and selected the following list of superVisors to su· pervise the election for a representative in congress for the eleventh congressional district of Texas. to be holden on Tuesday, the fourth day of November. A. D. 1890, at all the voting precincts of El Paso county. Texas." Subjoined to the above statement appears a list of names recommended for appointment as supervisors for 10 election precincts. For each precinct two persons are recommended jone being designated as a RepUblican, and the other as a Democrat. Immediately following the list of na.meS

860

FEDERAL REPORTER,

vol. 43.

is a certificate of S. H. Buchanan, chairman Republican executive committee of EI Paso county, in these words:
"I hereby certify that the chairman of the Democratic executive committee is absent from the county, and that I have presented this memorial to Park Pittman and Joseph Magoffin, committeemen from the 1st and 2nd precincts, respectively, and requested them to act for theil' said Democratic party; but tl1ey decli'ne and refuse to act in the premises. I have therefore suggested the name of a Iilan for each precinct-known to me to be a staunch Democrat, to act for them. "

The foregoing petition was filed by the chief snpervisor on the 30th of October, and on the same day he made the following indorsement, addressed to the court:
"I respectfully" re'commend the li.ppointment of the Supervisors of election, as prayed for within, for the county of EI Paso."

No other papers have been received by the' court from the chief Visor; afl'ecting,the application for supervisors for EI Paso county, nor has the court,received information from that officer in any other form, touching the appointments desired; and it may be added that noevidenceissuhmitted from any source, showing, or tending to show, that the persons suggested for appointment possess the qualifications required by law. At least one of the requisite qualifications is made apparent upon the face of the papers, to-wit, that one of the persons named for each precinct is a Republican and the other a Democrat. But in other essential particulars it will be observed, from an inspection of the stat·ute, neither the papers submitted nor evidence aliunde furnish any information whatever to the court.. The question, then, suggesting'itself to the court is, should the appointments be 7made? The chairrmin of the Republican committee, prior to the date' of forwarding the petitlonto the chief supervisor, used due · diligence, asm,anifested by his certificate, to secure the cfJ-operation of tbe managers, of .the Democratic party; and the failure of the latter party to join in a recom;rp.endation for the appointmentsafl'ords no ground for withholding froill the petitioning. party the protection and benefits of the statute. If'tbe law were otherwise construed, it would be within the power of ()l'1e. political party by passive indifferenCe to absolutely nullify andabrogdte its provisions. But ll;tws ean only be repealed by that de7 partment of the government which enacted them, and it is the duty of the courts to give, them a fair, just, sensible, and reasonable construction, remittIng to th& legislative departmimt the duty of declaring when they shaJl cease to exist. Hence, when, in proper cases, a petition which complies with the statute is presented to the eourt, it then becomes the duty of the court to act upon it, aod to make or decline the appointments as theperS0118 recommended,possess, or do not possess, the requisite qualifications; : Thfl remaining question is whether appointments should be made, in the a\lsence 'of all evidence showing that the persons recommended have the qua.lifications prescribed by the statute. By seotion 2012, Rev. St., the appointing power is conferred upon the court,and by that section

IN BE SUPERVISORS OF EX-EerION.

861

and section 2028 the qualifications of supervisors are prescribed. The first section referred to reads as follows: "The court, when so opened by the judge. shall proceed to appoint and commission"frqm day to day and from time to time. and under the hand of the judge. and under the seal of the court. for each election district or votinK precinct in such city or town. or for such election district or voting precinct iil the congressional district, as may have applied in the manner hereinbefore prescribed, and to revoke. change. or renew such appointment from time to time, two ;citizens, residents of the city or town, or of the election district or voting precinct in the county or parish. who shall be of different political parties, and able to read and write the English language, and who shall be known and designated as Supervisors of Election." "Sec"202S. No person shaJI be appointed a supervisor of election or a deputy-marshal. under the preceding provisions, who is not at the time of his appointment a qualified voter of the city, town, county, parish, election disprecinct in which his duties are to be performed." trict, or By express direction of the statute, the appointment must be made by the court,and, by the same authority, the commission must be iSf:lued "under the hand of the judge and under the seal of the court." Who, then, but the appointing power should judge of the qualifications of the applicant? Certainly the law does not vest such power exclusively in the chief supervisor, for the duties of that officer in relation to the appointment are of a limited nature. They are defined as follows: "He shall receive the applications of all parties for appointment to such positions: upon the opening, as contemplated In section two thousand and twelve, of the circuit court for the judicial circuit in which the commissioner so designated acts, he shall present such applications to the judge thert'of, and furnish information to him in respect to the appointment by the court of Bueh· supervisors of' election." Section 2026. The action of the chief supervisor is not eonclusive upon the court. He acts ip an advisory capacity, to aid and assist the court in passing upon quali,fications of applicants. The information furnished by the 'chief supervisor would doubtless be regarded by the court as sufficient to authorize the appointment, and the court would not be inclined to seek information elsewhere, in the absence of evidence showing that the chief supervisor had been misled\or deceived by interested parties. When the necessary information is furnished, the court' then acts, and either makes the appointment, or declines to make it,as the facts may warrant. Giving this statute a liberal construction, the court would not look to the chief supervisor as the sale source of information affecting the qualifications of applicants, but reliable evidence otherwise submitted should be considered and acted upon. But in all cases there should be evidence. whether obtained from one source or the other, showing that applicants or persons recommended possess the statutory qualifications as supervisors. In the case' now before the Gourt, evidence of qualifications is wholly wanting. The petition is silent upon the point; and the court is not info,rmed by evidence aliunde that the persons whosellppointments are sought possess· the qualifications required by law. Thefl,ppointments are therefore declined, and4Ln order will be en. ';:..... ','

Wllerea walking along,a railroad track, is and injured by a train, the llabjlity of the rai1l'oal,l c:ompanl depends upon the question whether those in of the train. af!6r dlScoverIDg that he was not going to leave the track,used.aU the means in their power to stop ths train before lt ,struck him.
,

2. BAME....CBOSSING8:,...SIGNAi.S.,

Rev. St. IIort. 4289. which prOvides that locomotives shall whistle or ring before crossing a road, and that a company, neglecting this precaution, shall "be liable for all damage which shall' be sustained by any person by reason of such neglect," doesuot render a company violating such statute' liable for injury to one Who saw tlls approaching train in time to avoid it.
,

S. MEASURE ,0)1' DAMAGES FOR TORTS., ,,' ,

In an actiOn for personal jury, in estimating the damages, may cons,l,'der, PIa,i,ntiff,'sphysical and m,e'Dta"I SU,'fferiD,g" the p,rObablG elI,oot of the injury upon his he!J,lth and the use of bis limbs, his ability to ],abor and attend to his affairs. and generally any reduotion of his power and capacity to earn money and to pursue the courae of life ,which he might otlj-erwise have done.

At Law. O. H. McGinnis and N. B. B(!fI,dy, for plaintiff. Davi8,' Beall Kemp, for defendant.
MAXJl)Y, J., (charging jUrfI.} l'he plaintiff, Rafael, Saldana, brings suit to recover of the defendantJ,'llilway company damages for personal injuries alleged to have been iriflicted upon him by one of the defendant's engines on the 6th day of September last, at the city of El Paso, Tex. It is in effect charged in the that the plaintiff's injuries resulted from the negligence of the defendant's servants ai-id employes undersubstantially the following circumstances, to-wit: That plaintiff, in returnwith two donkeys loaded with wood, desired to pass over ing to El a portion of defendant's road with his donkeys in order to cross a certain "hollow or gulch;" that before stepping upon the track he looked in both directions, east and west, to ascertain whether the track was clear, so that he could proceed along it without danger to himself and. his animals, and after taking all necessary precautions, as he alleges, for his safety, he then got on defendant's said railway track with his said two donkeys to pass over said "hollow or gulch;,j that immediately upon getting on the track he discovered, at a distance of about 360 feet,· Ii switch engine of defendant approaching at a rapid rate, dashing around a curve of the track; that the engine gave no signal ofits approach, by bell or whistle, 'but that, at said distance of about 360 feet, one of the defendant's employes on the engine "waved his hands to him, [plaintiff,] motioning to plaintiff to remove his donkeys from the track, which he was endeavoring to do, believing, after receiving said signal, that said switch engine would check up long enough for him to do so; but before he could remove the hindmost onefrom said track, the said switch engine ** * neither stopped nor !3lackened its speed, but negligently, willfully, recklessly, and wantonly, with great force and speed I ran against one of plaintiff's donkeys, which was in the lead, and threw'him against the